Finding a Constitutional Equilibrium

Dedicated to the 105th anniversary of the restoration of Georgia’s independence.

The beginnings of Georgian constitutionalism go back substantially to the first years of Georgia’s first democratic republic (1918-1921). On 26 May 1918, Georgia declared itself independent from Russia, establishing a democratic republic and also the illegality of the annexation of the Georgian Kingdom by Russia in 1801. However, the delicate attempt only lasted three years: In 1921, the Soviet Union occupied and successively swallowed the country. Only four days before, on 21 February 1921, Georgia had adopted its first ever constitution.

The collapse of the Soviet Union in 1991 left the countries of post-Soviet Eastern Europe in search of a legal framework for the reconstruction of their own state and sociopolitical identity. The term “reconstruction” is significant in two ways, emphasizing the dual nature of the current legal and political discourse in the successor states of the Soviet Union: on the one hand the inheritance of their own legal and political tradition (and the political thought) and the communist totalitarian past, on the other hand, the current challenges of modern constitutionalism.

The first constitution of 1921 belongs to the second wave of constitutionalism. Arguably, it had recognized, collected and mixed the best possible practice of constitutional doctrines of the time. Although the current 1995 constitution bases its legitimacy on the first constitution, it was only through the constitutional reform of 2017-2018 that it was modernized to return to the achievements of the first Constitution of 1921, changing the form of government. Georgia is a parliamentary republic after the constitutional reform of 2017-2018, as it was in the first years of independence (1918-1921).

The constitutional prehistory

The roots of the separation of powers, as in other legal cultures, can be found in the oldest sources of Georgian law.¹⁾ In the beginning of the 13th century, the treasurer Qutlu Arslan led a group of nobles and wealthy citizens in a struggle to limit the royal authority by creating a new council, karavi, a parliament-like institution whose members would deliberate and decide policy. This attempt at “feudal constitutionalism” was rendered abortive when Queen Tamar (ca. 1160 – 1213) had Qutlu Arslan arrested and his supporters were inveigled into submission.²⁾

After annexation of the Georgian principalities by Tsarist Russia in the beginning of the 19th century, the modern constitutional state is increasingly being discussed among various Georgian authors. But these ideas could not be realized because the country was not independent. Interesting in this context are the ideas of those involved in the conspiracy of 1832.³⁾ In the beginning of the 20th century, the constitutional ideas around the separation of powers, rule of law, principle of democracy, republicanism, basic human rights had only gained importance.⁴⁾

After the Russian Revolutions of 1917, Georgia declared independence on 26 May 1918. The Menshevik Social Democratic Party of Georgia won the parliamentary election and its leader, Noe Zhordania, became the prime minister. He was recognized as the legitimate head of the Georgian Government by Germany, France, UK, Belgium, Poland etc. In that period, many Eastern European countries declared themselves independent, founded democratic republics and passed their first constitutions, including Estonia (1920), Latvia (1922, the oldest Eastern or Central European constitution still in force and the sixth oldest still-functioning republican basic law in the world), Lithuania (1922). All these states were occupied and Sovietized in the 1920s or 40s of the 20th century.

Facing the onset of Soviet aggression, the Constituent Assembly adopted a constitution of the Democratic Republic of Georgia on February 21, 1921, the first modern fundamental law in the nation’s history. The constitution of 1921 belongs to the first threshold of the constitutional process after the First World War  which also includes Austria and the Weimar Republic.

The stage of drafting the constitution, its content and parallels

After the restoration of state independence on 26 May 1918, the process of preparation of the first constitution of the Georgian democratic republic began. The newly elected Constituent Assembly created a new constitutional commission in 1919. The Constitutional Commission first stated its priorities: the essential constitutional principles had to be worked out and the state form should be identified. The Western European and North American constitutional doctrines influenced the drafting of the constitutional text, such as the immutability of the state form, parliamentary sovereignty, uninterrupted work of parliament, preference for the collegial form of administration, etc. The Constitutional Commission had based the text of the Georgian Constitution on the following constitutions: Federal Constitution of the Swiss Confederation of 1874, French Constitution of 1875, Constitution of Belgium of 1831, the German Weimar Constitution of 1919 and the Constitution of the Czechoslovak Republic of 1920. Also, the influence of the IX Amendment of the US Constitution can be felt, for example in Art. 45 of the first constitution of Georgia of 1921. This principle declares: „The Constitution shall not deny other universally recognised human rights and freedoms that are not explicitly referred to herein, but that inherently derive from the principles of the Constitution.“ In Art. 4, para 2, sentence 3, the constitution of 1995 builds on this. The constitution of 1921 did not provide for a presidential office, and recognised direct democratic instruments and the doctrine of parliamentary sovereignty. The head of government exercised executive power. In this respect, the influence of the Swiss Constitution of 1874 is evident.

Influenced by the Social Democratic political elites, the constitution provides an interesting source of norms concerning socio-economic guarantees of individual citizens, being one of the first attempts to standardize fundamental social rights at the constitutional level. For example, classical fundamental rights were enshrined in the second chapter of the constitution. In a separate 13th chapter, the constitution recognized the socio-economic fundamental rights, such as the dignified existence, guarantees of the right to work etc. The fundamental rights of the unemployed were also enshrined. And importantly for that time, the constitution recognised women’s right to vote.

The first constitution of the Georgian Democratic Republic was passed on 21st February 1921. Tragically, it was only in force for four days: in February 1921, during the Russian Civil War, the Red Army advanced into Georgia and brought the local Bolsheviks to power. The Georgian army was defeated and the Social Democratic government fled the country. It began the era of Sovietization in Georgia.

The current version of the 1995 Constitution

After the restoration of independence in 1991, Georgia drafted its second constitution in 1995. It is closely tied to the 1921 constitution which can be seen most prominently in its preamble declaring “the historical and legal legacy of the constitution of 1921”. However, it was amended several times, and even a complete constitutional revision process was carried out three times: in 2004, in 2010 and in 2017/18. In all these three constitutional reforms, the form of government was changed. The first Georgian Constitution of 1921 provided for a parliamentary republic as the form of state. The 1995 constitution configured the form of government as a presidential republic modelled on the United States. In the course of the constitutional reform of 2004, a semi-presidential system of government was implemented which was emulating the French Constitution of 1958, but suffered from a very problematic functioning of the individual branches of power. After the constitutional reform of 2010, another step was taken in the direction of parliamentarism, but again with a very problematic design of the competences of parliament, the government and the president. The minimum requirements of the principle of separation of powers were clearly violated.

After the constitutional reform of 2017-2018, Georgia now is a parliamentary republic with an indirectly elected president. The main constitutional principles – the rule of law, principle of democracy, principle of the social state and in the same time – economic freedom – have been mentioned occasionally in the first chapter. Until the constitutional reform of 2017/18, these essential constitutional principles were reinforced. Art. 78 of the constitution establishes a duty for constitutional bodies to take all measures within the scope of their competences to ensure the full integration of Georgia into the European Union and the North Atlantic Treaty Organization.

The modernised constitution of 1995 recognises the principle of the social constitutional state, but is not so clearly conceived in social-democratic terms. In this context, the constitution is not ideologically determined on the right or left. Direct democratic instruments are reduced to referendums and plebiscites, due to which no laws can be passed. The doctrine of parliamentary sovereignty applies only restrictively. However, as an obituary of current developments, the right to internet has been enshrined at the constitutional level recently.

Overall, the last constitutional reform was the most successful constitutional reform because the form of government was designed to create a classical parliamentary republic, without compromising the principle of separation of powers– a similarity shared with the first Constitution of Georgia of 1921. The only problem with regard to the principle of checks and balances is that it is a parliamentary republic with a monocameral parliament. The constitution itself states that until the reunification of the state (including Abkhazia and the so-called South Ossetia – Tskhinvali region) the parliament shall remain mono-cameral.

Final remarks

The first constitution of Georgia of 1921 was passed quickly and in a very difficult political situation. It did not even last a week. Nevertheless, the constitution had recognized, collected and mixed the best possible practice of constitutional doctrines of the time: republicanism, direct democracy, parliamentary form of government, Parliamentary control instruments against the government, a detailed catalog of fundamental rights and freedoms, including the broad spectrum of the basic social rights, prohibition of the death penalty, female suffrage, secularism principle (separation of church and state), recognition of the basic principles of the constitution, etc.

Ramsey McDonald, a prominent British politician, later twice Prime Minister of Great Britain, stated about this Constitution of Georgia of 1921: “I familiarized myself with its constitution, its social and economic reconstruction[,] and what I saw there, I wish I could see in my country too.”⁵⁾

Only 100 years later, the Georgian legislator decided decided to return to the parliamentary republic. The constitutional reform of 2017-2018 transformed the form of government in Georgia into a classic parliamentary republic. This change is based on the inheritance of the first democratic republic of Georgia.